Conducting workplace investigations is an arduous process, but it can be made easier by having the right policies in place to support the investigation process. In California, where the laws are often more strict than in other states, this is especially important.
Policies set the stage for workplace investigations
The best place to start a workplace investigation is with your policies. You may have policies directly related to disciplinary procedures and workplace investigations (these policies explain the procedures you will follow during the investigation), and you may also have separate policies that explain the workplace rules. Both are important because:
- They inform employees of how and when workplace investigations will be conducted and set employee expectations accordingly.
- They help to establish good faith. “There are two main cases that are often cited in California dealing with the ‘good faith’ standard, and they are the Cotran v. Rollins case and the Silva v. Lucky Stores case. In these two cases, what they found was that so long as there was a good faith investigation that was fair and honest, regulated by good faith on the part of the employer, [and] that the decisions were not trivial, arbitrary, or capricious, they were done in good faith.” Marc Jacuzzi explained in a recent CER webinar.
Having a workplace investigation deemed to be in good faith is incredibly important in California because the court will weigh this heavily. “What the court in Cotran said, and what it affirmed in Silva, was that if you as the employer conduct a good faith investigation – even if your final determination is wrong – we’re not going to hold you up to this lofty standard where you need to be right all the time, so long as it’s done in good faith.” Jacuzzi explained.
- They help to ensure that the employer meets EEOC guidelines. One of their guidelines or suggestions is to have a policy in place.
- They help to ensure employers are prompt and thorough in the investigation process because they provide a roadmap for the process. HR can show others that the process is thorough and that decisions will not be taken lightly.
What policies support workplace investigations?
There are some key or foundational policies that will support most workplace investigations. Some examples include policies about:
- Harassment/discrimination. Be sure to outline the protected categories (such as age, race, gender, national origin, sexual orientation, gender identity, gender expression, disability, etc.)
- Communication. This includes employee communications via email, instant messages, text messages, social media, etc. “In that, it is imperative that you state that there is no expectation of privacy . . . because when you’re conducting an investigation, part of that investigation you may want to be doing behind the scenes, and you may not want to let certain employees know that you’ve gone into their emails and [have been] checking out what they’re doing.” Jacuzzi advised.
- Security and workplace protection. This type of policy should outline the security measures that are taken (such as video cameras) and should also explain that there is no expectation of privacy of company-owned storage areas like lockers and desks.
- Open door. This relates to workplace investigations because having an open door policy shows that employees have a means to promptly bring up any concerns (rather than waiting to advise the employer of a problem until after the problem has escalated).
- Drug and alcohol use. Employees should understand that drug and alcohol use at work is prohibited. Any exceptions (such as serving alcoholic beverages during after-hours functions) should be specifically noted.
- Standards of conduct (workplace rules). If an employee knows that a behavior is contrary to the standards of conduct, then it is easier to justify any action taken as a result of that behavior.
- Injury and Illness Prevention Plans (IIPP). These are required in California. They relate to workplace investigations because they can show the processes that were to be followed. The same goes for other safety-related policies and rules.
These are just a sample of the policies that may affect a workplace investigation in California. Other examples include policies related to: violence in the workplace, the employer’s right to inspect employee work areas, non-disclosure and confidentiality of proprietary information, employee dress codes, conflicts of interest or insider trading, and even attendance. If you have policies that clearly set expectations, workplace investigations become more straightforward.
The above information is excerpted from the webinar “Workplace Investigations from Complaint to Closure: A Step-by-Step Guide for California HR.” To register for a future webinar, visit CER webinars.
Marc L. Jacuzzi, Esq., is a shareholder in the law firm of Simpson, Garrity, Innes & Jacuzzi. He advises clients regarding all aspects of the employer/employee relationship including hiring and termination, wage and hour requirements, employee classification, civil rights and discrimination issues, employee investigations, commission plans, employment contracts, employee handbooks and policies, confidential information agreements, reductions in force, leaves of absence, employment audits, M&A employment issues, violence in the workplace, and international employment issues.